Appeal, No. 247, Oct. T., 1961, from decree of Court of Common Pleas of Montgomery County, April T., 1958, No. 448, in case of Milton Eagle Yohn v. Mary D. Yohn. Decree affirmed.
John R. Henry, with him O'Donnell, weiss, Mattei & Suchoza, for appellant.
C. Edmund Wells, with him Wells, Campbell & Reynier, for appellee.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
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This appeal is from a decree of the Court of Common Pleas of Montgomery County granting a divorce
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a.v.m. to the appellee, Milton Eagle Yohn, on the ground of desertion.
In the master's first report he stated: "Here the defendant admits withdrawal from common domicile and the Master understands the law to be that upon such admission being made, the burden rests upon the defendant to establish by a preponderance of the evidence, ... that her leaving was by mutual consent." The court below concluded that the master had not applied the correct rule on the burden of proof and returned the case, directing him to apply the rule set forth in the recent case of Jablonski v. Jablonske, 397 Pa. 452, 155 A.2d 614 (1959).
The master, apparently applying the correct rule in his supplemental report, reaffirmed his prior conclusion and recommended that the plaintiff be granted a divorce. The court below dismissed the defendant's exceptions to this report and granted the plaintiff a final decree in divorce.
The appellant contends here, as she did before the master and the court below, that the separation from her husband was consensual. She claims that the plaintiff has not made out all the elements of a desertion and that the decision of the court below was based on a misapplication of the law relating to the burden of proof.
The law governing a divorce on the ground of desertion is set forth in Jablonski v. Jablonski, 397 Pa. 452, 454, supra, as follows: "It is necessary for the plaintiff, in order to establish desertion, to show that the withdrawal from the domicile was both wilful and malicious and was persisted in for the required statutory period without reasonable cause; then if defendant produces testimony showing consent of the plaintiff to the withdrawal, this ...